Legal Conservative Blog

In the early evening, the Senate voted to close debate on Kevin Newsom, the nominee for the Eleventh Circuit. His actual confirmation, which is now a foregone conclusion, will take place in the next few days. Newsom resembles many Trump nominees to the federal bench. He has excellent formal qualifications, including a degree from Harvard Law School, a Supreme Court clerkship, and a stint as the solicitor general of Alabama, where he excelled at defending the state’s imposition of capital punishment against legal challenges. Most notably, Newsom is also young for a federal judge—just forty-five—and a political conservative, as evidenced by his membership in the Federalist Society. (Earlier this year, I wrote about the role of the Federalist Society, and one of its leaders, Leonard Leo, in stage-managing Trump’s nomination of Neil Gorsuch.) In light of his age, Newsom will likely serve for decades after the Trump Presidency has concluded.

All of this drama sends a very clear message to promising young lawyers — you have a wealth of career options if you join the Federalist Society, but you should get used to disappointment if you play for the other team. As Lithwick worried in 2010, what will happen to “the next generation of liberal law students, who continue to hear the message that their heroes are presumptively ineligible for a seat at the high court, whereas the brightest lights of the Federalist Society. . . are either already on the bench or will be seen as legitimate candidates the next time a Republican is in the White House?”

I do not agree that his steadfastness as described in the article is weakness, but interesting that Turley frames this way.

Scalia resisted the legal indeterminacy and intellectual dishonesty that he saw as a corruption of modern constitutional analysis. He believed that the law was not something that should be moved for convenience or popularity. Neither was he. He finished in the very same place he began in 1986. In the end, he is one of the few justices who can claim that he changed the Supreme Court more than the court changed him.

This weekend we lost an Honorable man, a great Jurist, and a true Champion of the Constitution, with the passing of Justice Antonin Scalia. To a large extent, Scalia’s insistence that the Constitution must be understood as it was understood at the time of its adoption, should have been unremarkable. Yet, when he reached the Court 30 years ago, what should have been unremarkable was radical. Over the past 30 years, case by case, often dissent by dissent, he brought the discussion of how the Constitution was to be understood so far, that in the Heller decision, even his liberal colleagues felt compelled to use this framework to discuss the case.

Never let it be said that one person can’t make a difference. Scalia’s life is a testament to the power of one committed individual with wisdom and integrity. Even the discussion about his successor (he can never be replaced) on the Court, and the rancor surrounding the process, bears witness to his legacy in the law.

May those of us in the law saddened by his passing honor his memory by seeking to do our utmost to ensure that his legacy of the rule of law being grounded in a written Constitution is paramount, and not subject to the passing whims and vagaries of popular opinion. A Constitutional right should not exist merely because of the protection of one vote, and I pray that in my lifetime we will see the Supreme Court strengthened in this regard even more than during Scalia’s tenure, although I fear this may not be the case.

Last Year’s Florida Chapters Federalist Society Conference was well attended with about 250 people, and there were numerous requests to make this an annual event, so I am happy to announce that the 2nd Annual Florida Chapters Conference is set for January 22-23 2016 at the Disney Boardwalk Hotel. The hotel room cutoff date is January 4th, so do not delay. A full agenda and information and information about the Conference is here .

I would like to invite all of my Conservative and Libertarian legal friends to the First Statewide Florida Federalist Society Convention to be held Feb. 27-28, 2015 at the Swan and Dolphin Resort at Walt Disney World. Limited discounted rooms available. This will be a great event that will bring together many of Florida’s top legal minds. Register now at http://www.fed-soc.org/events/detail/2015-florida-chapters-conference

In sum, the individual mandate is breathtaking in its expansive scope. It
regulates those who have not entered the health care market at all. It regulates
those who have entered the health care market, but have not entered the insurance
market (and have no intention of doing so). It is overinclusive in when it regulates:
it conflates those who presently consume health care with those who will not
consume health care for many years into the future. The government’s position
amounts to an argument that the mere fact of an individual’s existence
substantially affects interstate commerce, and therefore Congress may regulate
them at every point of their life. This theory affords no limiting principles in
which to confine Congress’s enumerated power.

Ultimately, the government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today:there are none.

The federal government’s assertion of power, under the Commerce Clause,
to issue an economic mandate for Americans to purchase insurance from a private
company for the entire duration of their lives is unprecedented, lacks cognizable
limits, and imperils our federalist structure.

After finding that the individual mandate is severable, because it is likely that Congress would have enacted the the other provisions even without the mandate, the weakest part of the decision by far, the court does note that this seems to even be inconsistent with the Government position taken in the litigation:

We acknowledge that the government, in arguing for the individual mandate’s
constitutionality, stated summarily that the individual mandate cannot be severed from the Act’s
guaranteed issue and community rating provisions because the individual mandate “is integral to
those sections that . . . provide that insurers must extend coverage and set premiums without
regard to pre-existing medical conditions.” Government’s Reply Br. at 58. But as explained
above, whether a statutory provision is “integral” or “essential” to other provisions for
Commerce Clause analytical purposes is a question distinct from severability. And in any event,
the touchstone of severability analysis is legislative intent, not arguments made during litigation.

Helpful Legal Links

Contact Us

Name

Phone

Email:*

Tell Us More:

Important Disclaimer: We appreciate your contacting our firm. Please understand that no attorney-client relationship is created by your sending us an electronic mail message or any other communication. In order to represent you, we would need to enter into an agreement to be signed by you and by our firm. In addition, please do not send us confidential information. Any information provided prior to a signed agreement will not be considered confidential. Finally, none of the information contained in our web site, including any blog posts, constitutes legal advice to any person. You should always seek specific legal advice for your specific situation. When we discuss the outcome of specific cases,results may not be typical, you may not have as beneficial a result.